On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-10-2003, 01-11-2162.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 17, 2010
Before Judges Cuff and Payne.
Defendant Dana James appeals from the denial of his petition for post-conviction relief (PCR). Defendant pled guilty to carjacking, N.J.S.A. 2C:15-2a(2), and is serving an eighteen-year term of imprisonment subject to a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole ineligibility term of 15.3 years. He is also serving a concurrent fifteen-year prison term subject to a five-year parole ineligibility term following a guilty plea to one count of first degree distribution of a controlled dangerous substance (CDS), and a concurrent eight-year prison term on one count of second degree distribution of CDS.
Defendant's PCR petition is grounded on two principal arguments. First, he argues that he was misinformed about the length of the parole ineligibility term. Second, he insists that he was never informed that he is subject to a five-year period of parole supervision following completion of his base term. Defendant also argues that PCR counsel failed to argue all of the points listed by him as "possible" issues in his pro se petition. Judge Connor dismissed the petition. We affirm.
On appeal, defendant presents the following arguments:
POINT I: THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT BECAUSE DEFENDANT'S COUNSEL FAILED TO RAISE ISSUES CONTAINED IN DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND THEREBY VIOLATED STATE V. RUE AND STATE V. WEBSTER. (NOT RAISED BELOW).
POINT II: THE TRIAL COURT SHOULD HAVE GIVEN DEFENDANT A MATERIALITY HEARING TO DETERMINE WHETHER HIS PLEA WAS ENTERED WITH FULL KNOWLEDGE THAT HE WOULD BE SUBJECT TO PAROLE SUPERVISION FOR FIVE YEARS AFTER HIS RELEASE FROM PRISON.
POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN HE ENTERED HIS PLEA IN THIS MATTER BECAUSE HE WAS NOT ADVISED THAT HE WOULD HAVE A FIVE YEAR PERIOD OF PAROLE SUPERVISION AFTER HE COMPLETED HIS SENTENCE NOR WAS HE TOLD THAT HIS PAROLE INELIGIBILITY PERIOD WAS 15.3 YEARS.
POINT IV: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE HE FAILED TO RAISE IN DEFENDANT'S DIRECT APPEAL DEFENDANT'S LACK OF KNOWLEDGE AS TO THE FIVE YEAR PERIOD OF PAROLE SUPERVISION AFTER RELEASE AND THAT HE WOULD HAVE TO SERVE A MINIMUM OF 15.3 YEARS BEFORE BECOMING ELIGIBLE FOR PAROLE.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2062-63, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel.
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland. State v. Preciose, 129 N.J. 451, 463 (1992). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Defendant claims that his guilty plea cannot be considered a voluntary and knowing plea because his attorney misinformed him of critical information or omitted critical information about the penal consequences of his plea. The voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed. 2d 205, 208 (quoting McMann, supra, 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed. 2d at 773). Reviewing courts must indulge in a strong presumption that counsel provided ...